The guaranty was finally incorporated in the Treaty of Peace as Article 10. It reads:

"ARTICLE 10

"The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled."

In the revision of the original draft the modifying clause providing for future territorial readjustments was omitted. It does not appear in Article 7 of the draft which was presented to the Commission on the League of Nations and which formed the basis of its deliberations. In addition to this modification the words "unite in guaranteeing" in Article III became "undertake to respect and preserve" in Article 7.

These changes are only important in that they indicate a disposition to revise the article to meet the wishes, and to remove to an extent the objections, of some of the foreign delegates who had prepared plans for a League or at least had definite ideas as to the purposes and functions of an international organization.

It was generally believed that the elimination of the modifying clause from the President's original form of guaranty was chiefly due to the opposition of the statesmen who represented the British Empire in contradistinction to those who represented the self-governing British Dominions. It was also believed that this opposition was caused by an unwillingness on their part to recognize or to apply as a right the principle of "self-determination" in arranging possible future changes of sovereignty over territories.

I do not know the arguments which were used to induce the President to abandon this phrase and to strike it from his article of guaranty. I personally doubt whether the objection to the words "self-determination"

was urged upon him. Whatever reasons were advanced by his foreign colleagues, they were successful in freeing the Covenant from the phrase. It is to be regretted that the influence, which was sufficient to induce the President to eliminate from his proposed guaranty the clause containing a formal acceptance of the principle of "self-determination," was not exerted or else was not potent enough to obtain from him an open disavowal of the principle as a right standard for the determination of sovereign authority. Without such a disavowal the phrase remained as one of the general bases upon which a just peace should be negotiated. It remained a precept of the international creed which Mr. Wilson proclaimed while the war was still in progress, for he had declared, in an address delivered on February 11, 1918, before a joint session of the Senate and House of Representatives, that "self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."

"Self-determination" is as right in theory as the more famous phrase "the consent of the governed," which has for three centuries been repeatedly declared to be sound by political philosophers and has been generally accepted as just by civilized peoples, but which has been for three centuries commonly ignored by statesmen because the right could not be practically applied without imperiling national safety, always the paramount consideration in international and national affairs. The two phrases mean substantially the same thing and have to an extent been used interchangeably by those who advocate the principle as a standard of right. "Self-determination" was not a new thought. It was a restatement of the old one.

Under the present political organization of the world, based as it is on the idea of nationality, the new phrase is as unsusceptible of universal application as the old one was found to be. Fixity of national boundaries and of national allegiance, and political stability would disappear if this principle was uniformly applied. Impelled by new social conditions, by economic interests, by racial prejudices, and by the various forces which affect society, change and uncertainty would result from an attempt to follow the principle in every case to which it is possible to apply it.

Among my notes I find one of December 20, 1918--that is, one week after the American Commission landed in France--in which I recorded my thoughts concerning certain phrases or epigrams of the President, which he had declared to be bases of peace, and which I considered to contain the seeds of future trouble. In regard to the a.s.serted right of "self-determination" I wrote:

"When the President talks of 'self-determination' what unit has he in mind? Does he mean a race, a territorial area, or a community?

Without a definite unit which is practical, application of this principle is dangerous to peace and stability."

Ten days later (December 30) the frequent repet.i.tion of the phrase in the press and by members of certain groups and unofficial delegations, who were in Paris seeking to obtain hearings before the Conference, caused me to write the following:

"The more I think about the President's declaration as to the right of 'self-determination,' the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Congress and create trouble in many lands.

"What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed discontent, disorder, and rebellion? Will not the Mohammedans of Syria and Palestine and possibly of Morocco and Tripoli rely on it? How can it be harmonized with Zionism, to which the President is practically committed?

"The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered! What misery it will cause!"

Since the foregoing notes were written the impracticability of the universal or even of the general application of the principle has been fully demonstrated. Mr. Wilson resurrected "the consent of the governed"

regardless of the fact that history denied its value as a practical guide in modern political relations. He proclaimed it in the phrase "self-determination," declaring it to be an "imperative principle of action." He made it one of the bases of peace. And yet, in the negotiations at Paris and in the formulation of the foreign policy of the United States, he has by his acts denied the existence of the right other than as the expression of a moral precept, as something to be desired, but generally unattainable in the lives of nations. In the actual conduct of affairs, in the practical and concrete relations between individuals and governments, it doubtless exercises and should exercise a measure of influence, but it is not a controlling influence.

In the Treaty of Versailles with Germany the readjustment of the German boundaries, by which the sovereignty over millions of persons of German blood was transferred to the new states of Poland and Czecho-Slovakia, and the practical cession to the Empire of j.a.pan of the port of Kiao-Chau and control over the economic life of the Province of Shantung are striking examples of the abandonment of the principle.

In the Treaty of Saint-Germain the Austrian Tyrol was ceded to the Kingdom of Italy against the known will of substantially the entire population of that region.

In both the Treaty of Versailles and the Treaty of Saint-Germain Austria was denied the right to form a political union with Germany, and when an article of the German Const.i.tution of August, 1919, contemplating a "reunion" of "German Austria" with the German Empire was objected to by the Supreme Council, then in session at Paris, as in contradiction of the terms of the Treaty with Germany, a protocol was signed on September 22, 1919, by plenipotentiaries of Germany and the five Princ.i.p.al Allied and a.s.sociated Powers, declaring the article in the Const.i.tution null and void. There could hardly be a more open repudiation of the alleged right of "self-determination" than this refusal to permit Austria to unite with Germany however unanimous the wish of the Austrian people for such union.

But Mr. Wilson even further discredited the phrase by adopting a policy toward Russia which ignored the principle. The peoples of Esthonia, Latvia, Lithuania, the Ukraine, Georgia, and Azerbaidjan have by blood, language, and racial traits elements of difference which give to each of them in more or less degree the character of a distinct nationality.

These peoples all possess aspirations to become independent states, and yet, throughout the negotiations at Paris and since that time, the Government of the United States has repeatedly refused to recognize the right of the inhabitants of these territories to determine for themselves the sovereignty under which they shall live. It has, on the contrary, declared in favor of a "Great Russia" comprising the vast territory of the old Empire except the province which belonged to the dismembered Kingdom of Poland and the lands included within the present boundaries of the Republic of Finland.

I do not mention the policy of President Wilson as to an undivided Russia by way of criticism because I believe the policy was and has continued to be the right one. The reference to it is made for the sole purpose of pointing out another example of Mr. Wilson's frequent departure without explanation from his declared standard for the determination of political authority and allegiance. I think that it must be conceded that he has by his acts proved that "self-determination" _is_ "a mere phrase" which ought to be discarded as misleading because it cannot be practically applied.

It may be pointed out as a matter of special interest to the student of American history that, if the right of "self-determination" were sound in principle and uniformly applicable in establishing political allegiance and territorial sovereignty, the endeavor of the Southern States to secede from the American Union in 1861 would have been wholly justifiable; and, conversely, the Northern States, in forcibly preventing secession and compelling the inhabitants of the States composing the Confederacy to remain under the authority of the Federal Government, would have perpetrated a great and indefensible wrong against the people of the South by depriving them of a right to which they were by nature ent.i.tled. This is the logic of the application of the principle of "self-determination" to the political rights at issue in the American Civil War.

I do not believe that there are many Americans of the present generation who would support the proposition that the South was inherently right and the North was inherently wrong in that great conflict. There were, at the time when the sections were arrayed in arms against each other, and there may still be, differences of opinion as to the _legal_ right of secession under the Const.i.tution of the United States, but the inherent right of a people of a State to throw off at will their allegiance to the Federal Union and resume complete sovereignty over the territory of the State was never urged as a conclusive argument. It was the legal right and not the natural right which was emphasized as justifying those who took up arms in order to disrupt the Union. But if an American citizen denies that the principle of "self-determination"

can be rightfully applied to the affairs of his own country, how can he consistently maintain that it is a right inseparable from a true conception of political liberty and therefore universally applicable, just in principle, and wise from the practical point of view?

Of course, those who subscribe to "self-determination" and advocate it as a great truth fundamental to every political society organized to protect and promote civil liberty, do not claim it for races, peoples, or communities whose state of barbarism or ignorance deprive them of the capacity to choose intelligently their political affiliations. As to peoples or communities, however, who do possess the intelligence to make a rational choice of political allegiance, no exception is made, so far as words go, to the undeviating application of the principle. It is the affirmation of an unqualified right. It is one of those declarations of principle which sounds true, which in the abstract may be true, and which appeals strongly to man's innate sense of moral right and to his conception of natural justice, but which, when the attempt is made to apply it in every case, becomes a source of political instability and domestic disorder and not infrequently a cause of rebellion.

In the settlement of territorial rights and of the sovereignty to be exercised over particular regions there are several factors which require consideration. International boundaries may be drawn along ethnic, economic, geographic, historic, or strategic lines. One or all of these elements may influence the decision, but whatever argument may be urged in favor of any one of these factors, the chief object in the determination of the sovereignty to be exercised within a certain territory is national safety. National safety is as dominant in the life of a nation as self-preservation is in the life of an individual. It is even more so, as nations do not respond to the impulse of self-sacrifice. With national safety as the primary object to be attained in territorial settlements, the factors of the problem a.s.sume generally, though not always, the following order of importance: the strategic, to which is closely allied the geographic and historic; the economic, affecting the commercial and industrial life of a nation; and lastly the ethnic, including in the terms such conditions as consanguinity, common language, and similar social and religious inst.i.tutions.

The national safety and the economic welfare of the United States were at stake in the War of Secession, although the attempt to secede resulted from inst.i.tutional rather than ethnic causes. The same was true when in the Papineau Rebellion of 1837 the French inhabitants of the Province of Lower Canada attempted for ethnic reasons to free themselves from British sovereignty. Had the right of "self-determination" in the latter case been recognized as "imperative" by Great Britain, the national life and economic growth of Canada would have been strangled because the lines of communication and the commercial routes to the Atlantic seaboard would have been across an alien state. The future of Canada, with its vast undeveloped resources, its very life as a British colony, depended upon denying the right of "self-determination." It was denied and the French inhabitants of Quebec were forced against their will to accept British sovereignty.

Experience has already demonstrated the unwisdom of having given currency to the phrase "self-determination." As the expression of an actual right, the application of which is universal and invariable, the phrase has been repudiated or at least violated by many of the terms of the treaties which brought to an end the World War. Since the time that the principle was proclaimed, it has been the excuse for turbulent political elements in various lands to resist established governmental authority; it has induced the use of force in an endeavor to wrest the sovereignty over a territory or over a community from those who have long possessed and justly exercised it. It has formed the basis for territorial claims by avaricious nations. And it has introduced into domestic as well as international affairs a new spirit of disorder. It is an evil thing to permit the principle of "self-determination" to continue to have the apparent sanction of the nations when it has been in fact thoroughly discredited and will always be cast aside whenever it comes in conflict with national safety, with historic political rights, or with national economic interests affecting the prosperity of a nation.

This discussion of the right of "self-determination," which was one of the bases of peace which President Wilson declared in the winter of 1918, and which was included in the modifying clause of his guaranty as originally drafted, is introduced for the purpose of showing the reluctance which I felt in accepting his guidance in the adoption of a principle so menacing to peace and so impossible of practical application. As a matter of fact I never discussed the subject with Mr.

Wilson as I purposed doing, because a situation arose on January 10, 1919, which discouraged me from volunteering to him advice on matters which did not directly pertain to legal questions and to the international administration of legal justice.

CHAPTER VIII

THE CONFERENCE OF JANUARY 10, 1919

It is with extreme reluctance, as the reader will understand, that I make any reference to the conference which the President held with the American Commissioners at the Hotel Crillon on January 10, because of the personal nature of what occurred. It would be far more agreeable to omit an account of this unpleasant episode. But without referring to it I cannot satisfactorily explain the sudden decision I then reached to take no further part in the preparation or revision of the text of the Covenant of the League of Nations. Without explanation my subsequent conduct would be, and not without reason, open to the charge of neglect of duty and possibly of disloyalty. I do not feel called upon to rest under that suspicion, or to remain silent when a brief statement of what occurred at that conference will disclose the reason for the cessation of my efforts to effect changes in the plan of world organization which the President had prepared. In the circ.u.mstances there can be no impropriety in disclosing the truth as to the cause for a course of action when the course of action itself must be set forth to complete the record and to explain an ignorance of the subsequent negotiations regarding the League of Nations, an ignorance which has been the subject of public comment. Certainly no one who partic.i.p.ated in the conference can object to the truth being known unless for personal reasons he prefers that a false impression should go forth. After careful consideration I can see no public reason for withholding the facts. At this meeting, to which I refer, the President took up the provisions of his original draft of a Covenant, which was at the time in typewritten form, and indicated the features which he considered fundamental to the proper organization of a League of Nations. I pointed out certain provisions which appeared to me objectionable in principle or at least of doubtful policy. Mr. Wilson, however, clearly indicated--at least so I interpreted his words and manner--that he was not disposed to receive these criticisms in good part and was unwilling to discuss them. He also said with great candor and emphasis that he did not intend to have lawyers drafting the treaty of peace. Although this declaration was called forth by the statement that the legal advisers of the American Commission had been, at my request, preparing an outline of a treaty, a "skeleton treaty" in fact, the President's sweeping disapproval of members of the legal profession partic.i.p.ating in the treaty-making seemed to be, and I believe was, intended to be notice to me that my counsel was unwelcome. Being the only lawyer on the delegation I naturally took this remark to myself, and I know that other American Commissioners held the same view of its purpose. If my belief was unjustified, I can only regret that I did not persevere in my criticisms and suggestions, but I could not do so believing as I then did that a lawyer's advice on any question not wholly legal in nature was unacceptable to the President, a belief which, up to the present time, I have had no reason to change.

It should be understood that this account of the conference of January 10 is given by way of explanation of my conduct subsequent to it and not in any spirit of complaint or condemnation of Mr. Wilson's att.i.tude. He had a right to his own opinion of the worth of a lawyer's advice and a right to act in accordance with that opinion. If there was any injustice done, it was in his asking a lawyer to become a Peace Commissioner, thereby giving the impression that he desired his counsel and advice as to the negotiations in general, when in fact he did not. But, disregarding the personal element, I consider that he was justified in his course, as the entire const.i.tutional responsibility for the negotiation of a treaty was on his shoulders and he was, in the performance of his duty, ent.i.tled to seek advice from those only in whose judgment he had confidence.

In spite of this frank avowal of prejudice by the President there was no outward change in the personal and official relations between him and myself. The breach, however, regardless of appearances, was too wide and too deep to be healed. While subsequent events bridged it temporarily, it remained until my a.s.sociation with President Wilson came to an end in February, 1920. I never forgot his words and always felt that in his mind my opinions, even when he sought them, were tainted with legalism.

CHAPTER IX

A RESOLUTION INSTEAD OF THE COVENANT

As it seemed advisable, in view of the incident of January 10, to have nothing to do with the drafting of the Covenant unless the entire theory was changed, the fact that there prevailed at that time a general belief that a preliminary treaty of peace would be negotiated in the near future invited an effort to delay the consideration of a complete and detailed charter of the League of Nations until the definitive treaty or a separate treaty dealing with the League alone was considered. As delay would furnish time to study and discuss the subject and prevent hasty acceptance of an undesirable or defective plan, it seemed to me that the advisable course to take was to limit reference to the organization in the preliminary treaty to general principles.

The method that I had in mind in carrying out this policy was to secure the adoption, by the Conference on the Preliminaries of Peace, of a resolution embodying a series of declarations as to the creation, the nature, and the purposes of a League of Nations, which declarations could be included in the preliminary treaty of peace accompanied by an article providing for the negotiation of a detailed plan based on these declarations at the time of the negotiation of the definitive treaty or else by an article providing for the summoning of a world congress, in which all nations, neutrals as well as belligerents, would be represented and have a voice in the drafting of a convention establishing a League of Nations in accordance with the general principles declared in the preliminary treaty. Personally I preferred a separate treaty, but doubted the possibility of obtaining the a.s.sent of the Conference to that plan because some of the delegates showed a feeling of resentment toward certain neutral nations on account of their att.i.tude during the war, while the inclusion of the four powers which had formed the Central Alliance seemed almost out of the question.

In addition to the advantage to be gained by postponing the determination of the details of the organization until the theory, the form, the purposes and the powers of the proposed League could be thoroughly considered, it would make possible the speedy restoration of a state of peace. There can be no doubt that peace at the earliest possible moment was the supreme need of the world. The political and social chaos in the Central Empires, due to the overthrow of their strong autocratic governments and the prevailing want, suffering, and despair, in which the war had left their peoples, offered a fertile field for the pernicious doctrines of Bolshevism to take root and thrive. A proletarian revolution seemed imminent. The Spartacists in Germany, the Radical Socialists in Austria, and the Communists in Hungary were the best organized and most vigorous of the political groups in those countries and were conducting an active and seemingly successful propaganda among the starving and hopeless ma.s.ses, while the Russian duumvirs, Lenine and Trotsky, were with funds and emissaries aiding these movements against established authority and social order.

Eastern Europe seemed to be a volcano on the very point of eruption.

Unless something was speedily done to check the peril, it threatened to spread to other countries and even to engulf the very foundations of modern civilization.

A restoration of commercial relations and of normal industrial conditions through the medium of a treaty of peace appeared to offer the only practical means of resisting these movements and of saving Europe from the horrors of a proletarian despotism which had brought the Russian people to so low a state. This was the common judgment of those who at that time watched with increasing impatience the slow progress of the negotiations at Paris and with apprehension the political turmoil in the defeated and distracted empires of Central Europe.

An immediate restoration of peace was, as I then saw it, of vital importance to the world as it was the universal demand of all mankind.

To delay it for the purpose of completing the organization of a League of Nations or for any other purpose than the formulation of terms essential to peace seemed to me to be taking a risk as to the future wholly unwarranted by the relative importance of the subjects. There is no question, in the light of subsequent events, that the peoples of the Central Empires possessed a greater power of resistance to the temptations of lawlessness and disorder than was presumed in the winter of 1918-19. And yet it was a critical time. Anything might have happened. It would have taken very little to turn the scale. What occurred later cannot excuse the delay in making peace. It was not wise statesmanship and foresight that saved the world from a great catastrophe but the fortunate circ.u.mstance that a people habituated to obedience were not led astray by the enemies of the existing order.

Of the importance of negotiating a peace without waiting to complete a detailed plan for a League of Nations I was firmly convinced in those early days at Paris, and I know that the President's judgment as to this was contrary to mine. He considered--at least his course can only be so interpreted--that the organization of a League in all its details was the princ.i.p.al task to be accomplished by the Conference, a task that he felt must be completed before other matters were settled. The conclusion is that the necessity of an immediate peace seemed to him subordinate to the necessity of erecting an international agency to preserve the peace when it was restored. In fact one may infer that the President was disposed to employ the general longing for peace as a means of exerting pressure on the delegates in Paris and on their Governments to accept his plan for a League. It is generally believed that objections to certain provisions of the Covenant were not advanced or, if advanced, were not urged because the discussion of objections would mean delay in negotiating the peace.

Mr. Wilson gave most of his time and thought prior to his departure for the United States in February, 1919, to the revision of the plan of organization which he had prepared and to the conversion of the more influential members of the Conference to its support. While other questions vital to a preliminary peace treaty were brought up in the Council of Ten, he showed a disposition to keep them open and to avoid their settlement until the Covenant had been reported to the Conference.

In this I could not conscientiously follow him. I felt that the policy was wholly wrong since it delayed the peace.